Court Lets Stand Ruling On Student Transfers

The U.S. Supreme Court last week declined an invitation from an
array of education groups to use a Maryland case to decide whether
school districts may voluntarily consider race in making student
assignments.

The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.,
ordered the district to allow a white student to transfer from his
neighborhood elementary school, where blacks outnumbered whites, to a
mostly white magnet school. The 125,000-student district in suburban
Washington had rejected the transfer of 1st grader Jacob Eisenberg in
1998, maintaining that it would contribute to racial isolation at his
neighborhood school.

The appeal in Montgomery County Public Schools v.
Eisenberg (Case No. 99-1069) was the first to reach the high
court from a wave of recent litigation challenging race-based
student-assignment policies in school systems without a history of
segregated schools or where court-ordered desegregation orders have
been lifted.

The National School Boards Association, joined in a friend-of-
the-court brief by 16 other education groups, had urged the justices to
accept the case and provide school leaders with guidance "on how they
may use race, together with other factors, in granting or denying
transfers, or devising overall student-assignment plans, or admitting
students to magnet schools or special academies."

The brief made clear that the NSBA and groups such as the American
Association of School Administrators favor race-conscious policies to
promote diversity and limit racial isolation public schools.

"Diversity in K- 12 schools serves the purposes of promoting
citizenship and harmony among people of different backgrounds and
experiences," the groups told the high court.

'Racial Balancing'

The Montgomery County case began when Jacob Eisenberg's parents
applied to transfer their son from Glen Haven Elementary School to
Rosemary Hills Elementary School, which had a mathematics and science
magnet program.

In rejecting the request, the school district noted that white
enrollment at Glen Haven had dropped from 39 percent in 1994- 95 to 24
percent in 1997-98. Black enrollment at the school, meanwhile, had
risen to 41 percent.

The boy's parents sued, alleging a violation of the 14th Amendment's
guarantee of equal protection of the law. They lost in federal district
court, but the 4th Circuit court ruled in their favor in October.
Nevertheless, Jacob has attended his neighborhood school since the fall
of 1998.

Ruling unanimously, the three-judge appellate panel found that the
district's transfer policy was a form of "racial balancing" that must
be analyzed under the strictest legal test.

The judges declined to decide whether the promotion of diversity was
a compelling governmental interest that would allow the policy to be
upheld. The district's policy was not narrowly tailored to such a goal
even if it were a compelling interest, the judges ruled.

"Added to the racial balancing is the fact that Jacob's transfer
request was refused because of his race," the appellate panel said.
"Such race- based governmental actions are presumed to be invalid and
are subject to strict scrutiny. Nothing in this record overcomes that
presumption."

In its appeal to the Supreme Court, the Montgomery County district
argued that educators should be given greater leeway to assign students
with racial diversity in mind.

The willingness of the county school board to ask the Supreme Court
to review the issue was notable because several months earlier, the
Boston school board chose not to appeal a court ruling that barred the
consideration of race in admissions to the prestigious Boston Latin
School.

The court's majority has been highly skeptical of government
classifications based on race, and many legal experts believe it is
only a matter of time before it addresses the issue in education. In
its 1997-98 term, the high court was scheduled to consider a case
involving the Piscataway, N.J., district's decision to lay off a white
teacher over a black colleague with the same seniority. But the
district reached a settlement with the white teacher shortly before the
date for oral arguments.

'Touchy-Feely Mantras'

Edwin C. Darden, a senior lawyer with the NSBA, said it remains an
unsettled question whether diversity is a valid basis for
race-conscious decisions by school districts.

"The message we're trying to send is that there are pure educational
benefits to children learning in a diverse educational environment," he
said.

But Linda Chavez, the president of the Center for Equal Opportunity,
a Washington organization that opposes affirmative action and other
race-conscious policies, said no child should be refused a place in
public school based on race.

"Touchy-feely mantras of diversity and insulting claims that
minorities can't learn as well unless they sit next to whites cannot
justify discrimination," she said.

Similar cases are in the legal pipeline. Pending at the high court
is an appeal from the Arlington County, Va., school district of another
4th Circuit ruling that barred consideration of race in admissions to a
magnet school. The justices could decide later this spring whether to
accept that appeal.

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